BIG WIN FOR THE INSURRECTIONISTS
Robert B. Beauchamp
all rights reserved
October 16, 2001, the United States Court of Appeals for the Fifth Circuit
quietly issued an
opinion of historical magnitude. In
United States v. Emerson, The Fifth Circuit specifically held that
Second Amendment protects the right of individuals to privately keep and bear
their own firearms that are suitable as individual, personal weapons . . .
regardless of whether the particular individual is then actually a member of a
reading the Fifth Circuit's 80-plus page opinion and the Second Amendment
itself, it occurred to me that it really shouldn't take as much intellectual
horsepower as has been applied in the last fifty years to decipher the single
sentence constituting the Second
Amendment. So I thought I'd
undertake a little experiment notable only for its complete lack of double
blind, regression analysis, scientific doublespeak.
I typed on four index cards the following words:
well regulated militia being necessary to the security of a free State, the
right of the people to keep and bear Arms shall not be infringed."
borrowed four publicly schooled neighborhood kids:
two fifth graders, a sixth grader and a seventh grader.
I separated my four volunteers and gave each of them one of the cards.
I told them only that the sentence on the card was one of the Bill of
Rights guaranteed by the "American Constitution" and that
"arms" meant "guns" (I was pleasantly surprised that each of
them had at least heard of the Constitution).
I asked each of the sequestered children to tell me what they thought the
sentence on the card meant. Only
the seventh grader had any idea what a "militia" was and she thought
it was "the people who blew up the building in Oklahoma."
Each of these children told me that the Second Amendment means that all
people have a right to have guns, though one of the more ingenious, the sixth
grader, told me that arms meant knives and other weapons besides guns.
Suitably corrected on the definition of arms, I thanked them and they
gleefully went back to their skateboards and video games.
there you have it. It took four
elementary school children ten minutes to decipher a single sentence, the
meaning of which continues to perplex virtually the entire organized legal
profession from the American Bar Association to the judiciary of the various
states and federal courts along with the mental powerhouses at the ACLU,
the Violence Policy Center and a million
moms, give or take a few.
the idea is profoundly unnerving to liberals, for the first time a federal court
(both the Emerson trial court and the appellate court) had undertaken an
analysis of the meaning of the Second Amendment and unequivocally concluded that
the Second Amendment really does prohibit government infringement on "the
right of the people to keep and bear arms" apparently within some
boundaries of reason.
most, I rushed through the decision, noted the Court's conclusion that
notwithstanding the Second Amendment, Dr. Emerson's rights were not violated by
a federal criminal statute prohibiting a person who is the subject of a family
court restraining order from
possessing a firearm that he or she may have legally possessed the day before.
Also, like most others, I noted that the concurring opinion by the
Clinton appointee concluded that the majority's entire 60 or so page discussion
of the Second Amendment was what we lawyers call "dicta," which means
a lot of nice language that is not binding on other courts because it was not
necessary to reach the court's ultimate conclusion.
I bought the dicta argument hook, line and sinker and I sat down to
disgorge my thoughts and impressions on the legal, practical and political
import of this truly groundbreaking case. I
was careful to warn that despite the eloquent linguistic and historical analysis
leading to the court's conclusion that the Second Amendment is not about the
rights of the states or militias but about the rights of
people, we must remember that the discussion we most cared about was mere dicta
not binding on other courts.
it hit me (though graduating high in my class at a well respected law school,
I'd be the first to admit that head injuries from college rodeo and as a police
officer sometimes slows my thinking). The
Second Amendment analysis was not dicta at all.
It was required in order to reach the court's decision.
That fact renders the Court of Appeals in Emerson more than just a
massive blow to the anti-gun crowd, it is a devastating blow.
You see, Dr. Emerson
was being charged with possession of firearm while subject to a family law
restraining order. The trial court
dismissed the charge based on Dr. Emerson's argument that the law impermissibly
infringed upon his rights protected by the Second Amendment.
appealed and argued that the trial court was wrong in dismissing the charges
because the Second Amendment neither recognizes nor protects the right of any
individual to possess a firearm unless on active duty as a member of the
National Guard (a militia). In
order to determine whether or not the trial court was correct, analysis would be
required to determine whether Dr. Emerson had any right protected by the Second
Amendment. If Emerson had such a
right, the court would have to go further to determine whether, under the
circumstances, the statute in question impermissibly infringed on that
Constitutionally protected right in a way comparable to permissible
infringements on other rights such as the famous analogy that free speech rights
include the right to yell "FIRE!" in a crowded place or permit slander
The court undertook
precisely the required analysis. The
court first engaged in an unprecedented analysis of the intent and proper
construction of the Second Amendment to determine whether, as an individual,
Emerson had any right protected by the Second Amendment.
The court left no stone unturned in reaching the conclusion that all
historical, contemporary and political evidence at the time the Second Amendment
was drafted and ratified reveals no evidence of any interpretation other than
that the Second Amendment was adopted solely to protect the rights of individual
citizens to keep and bear personal arms for their own defense and defense of the
state and the Nation.
establishing that Dr. Emerson enjoyed rights protected by the Second Amendment
could the court examine whether the statute in question, impermissibly infringed
upon those rights.
As lawyers, we like
courts to give us opinions containing "tests" by which we can measure
other case and other circumstances. The
Fifth Circuit could have been more clear but it did give some guidance as to
when a restriction is a lawful infringement of individual rights protected by
the Second Amendment:
as we have held, the Second Amendment does protect individual rights,
that does not mean that those rights may never be made subject to any limited,
narrowly tailored specific exceptions or restrictions for particular cases that
are reasonable and not inconsistent with the right of Americans generally to
individually keep and bear their private arms as historically understood in this
country. . . . As
we have previously noted, it is clear that felons, infants and those of unsound
mind may be prohibited from possessing firearms.
conclude that the nexus between firearm possession by the party so
enjoined and the threat of lawless violence, is sufficient, though likely barely
so, to support the deprivation, while the order remains in effect, of
the enjoined party's Second Amendment right to keep and bear arms [even when
there is no immediate right to appeal to another court] at least so long as the
order, as here, is not so transparently invalid as to have only a frivolous
pretense to validity.
Those of us who agree
with the Court’s interpretation of the Second Amendment may not like the
court’s conclusion that these particular circumstances justify an infringement
of Dr. Emerson’s Second Amendment rights.
Yet, there is no disputing that a United States Court of Appeal has for
the first time undertaken a sound analysis of the legal, historical and
political precedents on which the Second Amendment is based, has concluded that
the framers of our Constitution knew the difference between the “people” and
the “states” and that the Second Amendment protects the former, not the
tobacco companies, anti-gun activists have lost their ability to contend that no
court has ever diverged from the oft repeated but erroneous interpretation of
the U.S. Supreme Court's ruling in United
States v. Miller in which the court noted the absence of evidence that a
sawed off shotgun "has some reasonable relationship to the preservation or
efficiency of a well regulated militia" and whether or not the individual
defendant therefore had an individual right protected by the Second Amendment
"to keep and bear such an
instrument." Lacking such
evidence, the Supreme Court remanded the case to the trial court to determine
whether such an "instrument" did bear some reasonable relationship to
the preservation or efficiency of a well regulated militia in which case it is
clear the individual's right to possess it would have been protected by the
the anti-gun crowd will not go quietly into that good night.
The spin has already started in a world of twenty-four hour news cycles
dominated by liberal media who, like baby birds, their mouths agape, eagerly and
uncritically air whatever anti-gun groups feed them.
Most news outlets have already headlined the ruling with phrases such as:
"Appeals court: Domestic violence restraining order is reason to restrict
gun rights" (Associated Press); "Texas doctor's gun rights curbed by
appeals court" (Houston Chronicle); and "Ruling: Government can limit
gun rights in domestic violence cases" (Dallas Morning News).
Violence Policy Center issued a press
release the same day the opinion was released claiming victory:
judges rejected the argument that the Second Amendment guarantees domestic
abusers an individual right to keep and bear arms."
most anti-gun propaganda, the VPC's release omitted reference to an outright
rejection of the VPC's position that the Second Amendment does not guaranty an
individual's right to keep and bear personal arms -- and misstated the facts.
Dr. Emerson has never been convicted of any abuse and, in fact, when his wife
later accused him of aggravated assault and child endangerment, it took three
days to try the case and less than an hour for the jury of nine women and three
men to acquit Dr. Emerson.
Even the obviously
anti-gun judge Robert Parker who concurred in the Fifth Circuit's result but not
its Second Amendment analysis, was not above both preposterous hyperbole and ad
hominem attacks on gun owners and their rights:
"whatever the scope of the claimed Second Amendment right, no
responsible individual or organization would suggest that it would protect
Emerson's possession of the other guns found in his military-style arsenal"
consisting of a second identical Beretta nine-millimeter, "a semi-automatic
M-1 carbine, an SKS assault rifle with bayonet, and a semi-automatic M-14
assault rifle." Judge Parker's
description of the quite legal but very scary sounding weapons could have been
written by the VPC. Judge Parker
doesn't tell us that the government itself dropped all counts for possession of
the three scary rifles and the other scary handgun that "no responsible
individual or organization would suggest" are protected by the Second
irresponsible is judge Parker's subsequent statement:
evidence shows that Emerson pointed the Beretta at his wife and daughter when
the two went to his office to retrieve an insurance payment. When his wife moved
to retrieve her shoes, Emerson cocked the hammer and made ready to fire.
Emerson's instability and threatening conduct also manifested itself in comments
to his office staff and the police. Emerson told an employee that he had an
AK-47 and in the same breath that he planned to pay a visit to his wife's
boyfriend. To a police officer he said that if any of his wife's friends were to
set foot on his property they would "be found dead in the parking
Parker leaves us with the inference that Dr. Emerson is, indeed, a very
dangerous man. What judge Parker
doesn't tell us is that before he drafted his opinion asserting these
allegations as if they were facts, he already knew that a jury of nine women and
three men had acquitted Dr. Emerson of the charges judge Parker repeats as
vitriol demonstrates that we live in a Nation in which we must not only be
constantly vigilant against bias of the media, but that even the judiciary is
not above manipulating language to further personal beliefs.
Indeed, as all familiar with the Second Amendment debate are aware, the
judiciary has for years uncritically adopted and repeated the opinion that the
"the people" used in the Second Amendment, though readily
comprehensible to schoolchildren, does not mean "the people" at all.
Rather, it means "the states" or "members of a
militia" or some other entity. It
means little to judges that such interpretation requires the adoption of an
assumption that our Constitution's framers were so linguistically naďve as to
be incapable of distinguishing between “the people” and “the states” in
the Bill of Rights from one sentence to the next.
also live in a Nation governed by politicians who, in the words of Will Rogers,
have forgotten who the hired hands are. They
routinely adopt legal enactments so far removed from the enumerated powers
contemplated by the Constitution's framers as to render the concept of
enumerated powers meaningless. To
such politicians any theory of the Second Amendment that promotes as one of its
purposes a constraint on oppressive government is anathema.
Indeed such interpretation of the Second Amendment is so offensive to
liberals that it is pejoratively labeled and dismissed as the
confirmation hearings in which John Ashcroft quoted a passage by some historical
figure articulating the "insurrectionist view" of the Second
Amendment, Senator Kennedy, in a fit of near hysteria, demanded that Mr.
Ashcroft apologize for insinuating through such quotation that the government
could become oppressive. Though I
don't recall the original author of the statement quoted, it might well have
been Hubert Humphrey who said:
of the chief guarantees of freedom under any government, no matter how popular
and respected, is the right of the citizens to keep and bear arms. . . .
But the right of the citizens to bear arms is just one guarantee
against arbitrary government and one more safeguard against a tyranny which
now appears remote in America, but which historically has proved to be always
It could as easily
have been said two hundred years earlier by someone intimately involved in the
debates over the wording and scope of the Second Amendment.
Tench Coxe, for example, noted in 1789:
civil rulers, not having their duty to the people duly before them, may
attempt to tyrannize, and as the military forces which must be occasionally
raised to defend our country, might pervert their power to the injury of their
fellow citizens, the people are confirmed by the next article in their right
to keep and bear their private arms."
Emerson will now likely have a trial. He
will have no right to petition the Supreme Court for further review on the
Second Amendment issue until the conclusion of the trial.
Whatever the outcome, the extensive historical analysis undertaken by
both the District Court and the Fifth Circuit as to the original intent and
meaning of the Second Amendment leads to the irrefutable conclusion that both
courts got it right - "the right of the people to keep and bear arms shall
not be infringed" means what it says.
next battle is for a wider adoption of the conclusion reached by the Fifth
Circuit. In addition, the Second
Amendment was originally intended only as a restriction on the powers of the
federal government. Following the
adoption of the Fourteenth Amendment at the conclusion of the Civil War, the
Supreme Court adopted a policy of "incorporation" on an amendment by
amendment basis. The Second
Amendment has never been "incorporated" under the Fourteenth Amendment
so as to restrict the infringement by states of rights protected by the Second
Amendment, though the debates over ratification of the Fourteenth Amendment and
subsequent court decisions indicate that the First Eight Amendments of the Bill
of Rights were clearly intended to be applicable to the states under the
Emerson has come along at a time in American history in which there is a
resurgence of patriotism and a commitment to both national and personal
liberalism is in decline, at least for the moment.
The decision cannot help but go a long way toward bringing the simmering
issue of the scope of the Second Amendment to a head at a time when gun sales
are at record highs and crime is at record lows.
Given that those political subdivisions with the most prohibitive gun
laws also have the highest violent crime rates, perhaps the framers of our great
Constitution not only knew the difference between "the people" and
"the states," perhaps, in fact, they were smarter than the current
crop of liberal politicians, celebrities and others who seldom step beyond the
protection of those who bear arms on their behalf while arguing that the rest of
us are in no need of such protection.
Fifth Circuit's opinion is published electronically at:
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